STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 2

Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.

Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.

Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."

But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.

Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.

Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?

You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).

In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.

But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).

What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.

I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.

Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.

Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.

Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.

It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).

Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.

If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.

Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.

See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.

But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.

And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.

He really must not have liked Austin.

Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.

CITIZENS UNITED v. FEC : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 1

Perhaps against my better judgment, I passed several hours this weekend working through the Supreme Court's recent campaign spending case: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). In brief, the case invalidates a Congressional Act that restricts corporations from making "independent expenditures" or issuing "electioneering communications" that expressly "advocate the election or defeat of a particular Federal candidate" within 30 days of a Federal election. 2 U.S.C. §§ 441(b), 434(f)(3)(A). The Court said that the Act violated "all corporations' right to political speech" under the First Amendment. In the process, the Court overruled a 20-year old precedent that upheld the same law on the State level: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

I reacted with surprise when I learned what the Court had done. After all, it made perfect sense to me why Congress would want to restrict corporations' ability to spend money advocating particular Federal candidates: To prevent massive, wealthy businesses from deluging the public with their views, foreclosing fair debate in an election. Money buys influence. Even if corporations do not use money to literally "buy off" a candidate, they can easily use it to buy up all the airtime and essentially tilt the playing field to favor candidates they like--namely, guys who support corporations and their agendas.

In 1990, the Supreme Court said as much. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court--speaking through a 6-3 majority--concluded that restrictions on corporate "independent expenditures" during elections did not violate the First Amendment. True, such restrictions impacted corporations' "freedom to speak." But the Court found the State's interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" justified restrictions on corporate political speech. Id. at 660. The Court further reasoned that a State could restrict corporate spending on elections in order to curb "corruption or the appearance of corruption." Id. at 659.

In other words, the Court recognized in 1990 that corporations hold disproportionate political influence in America because they have so much more money than individual voters. That was true 20 years ago. It is even more true today. Corporations are getting bigger and bigger. Traditional competitors merge with each other. Their treasuries grow. And they can use that money to dominate the airwaves before elections in ways that individuals cannot.

But now the Court overrules Austin. Writing for the new conservative majority, Justice Anthony Kennedy called Austin "poorly reasoned," even though six justices voted for it just 20 years ago. So I guess that means a case is "poorly reasoned" when it tells the truth about corporations. It is no accident that Kennedy did not vote for Austin back in 1990. Today he gets his revenge, thanks in large part to right-wing help from Bush appointees Clarence Thomas, John G. Roberts and Samuel A. Alito. Those guys weren't around in 1990. Now they're calling the constitutional shots: They think Austin was "poorly reasoned," so they overruled it.

Why did they think Austin was "poorly reasoned?" After all, doesn't it seem obvious that Congress should take steps to prevent massive corporations from dominating news cycles at election time? I think so. But I'm not on the Supreme Court.

Much to my amazement, the conservatives actually phrase the debate in "liberty" terms. They think that corporations are exactly the same as private individuals when it comes to First Amendment rights. Applying that legal fiction, they think that corporations--like individual guys on soapboxes--have the right to unlimited free speech. And they are outraged that "poor little corporations" might face criminal prosecution under the law if they spend money supporting a Federal candidate before an election.

To be clear, the Federal law in this case does not bar corporations from spending money on elections. It merely requires them to set up separate entities for political purposes--so-called "Political Action Committees" (PACs). If a corporation wants to spend money advocating for a candidate, it has to spend through the PAC, and the PAC must report its funding sources. This allows the public to see who is paying for the corporate messages. PACs must also keep a treasurer and records. Yes, corporations have to endure some bureaucracy before exercising their First Amendment rights under the law. But it is not as if they cannot speak: They must merely follow a few more administrative steps than private individuals.

Yet the conservatives scream bloody murder about these administrative steps. How unjust and unfair, they say, that corporations must form new entities and pay some paperwork expenses in order to influence Federal elections! Justice Kennedy paints a doomsday scenario in which he claims that "poor little corporations" cannot afford to comply with these "administrative steps" prior to speaking on an election. He says nothing about the mammoth corporations that have the time and resources to comply with the law. No, it's all about the "little corporations--" the poor, wronged little corporations and small family businesses.

In truth, it is extremely easy for small businesses to circumvent the law here. Assuming that small businesses even have the capital needed to advertise for major Federal elections, they could avoid problems with the law merely by creating a PAC or by speaking as individuals. The law only applies to corporations, so a "little" corporation could sidestep it by refraining from speaking as a corporation. If a "little" corporation only has two members, they could speak as individuals "with connections to small business." They do not need a PAC. They still have their individual First Amendment rights. When the law involves fictions like "corporate people," it is easy to be imaginative in thwarting those fictions.

In this light, it is foolish for the conservatives to crusade for the "poor, wronged little corporations." By standing up for the "little corporations" in Citizens United, they actually abolished restrictions on the big corporations--and they were the ones who caused the problem in the first place. They threw the baby out with the bathwater. But that was probably what they intended all along.

And what glib reasoning the Court used to reach its corporate-friendly conclusions. While I might find it obvious that "immense aggregations of corporate wealth" have a "corrosive and distorting influence" on Federal elections, the Court resolved that quandary easily enough. On this point, Justice Kennedy merely says: "We conclude that independent expenditures made by corporations do not give rise to corruption or the appearance of corruption." Citizens United, 558 U.S. __ (2010)(slip. op. at p. 42).

Oh, all right. I'll just take your word for it. When I see a corporation funneling $140 million to advocate a Republican candidate for Senate, I won't assume any corruption. Corporations, after all, are selfless and would never do anything underhanded.

Let us even imagine that corruption--or the appearance of corruption--does not flow from corporate expenditures on behalf of a candidate. Even then, the fact that a corporation spends massive amounts to elect a corporate-friendly candidate creates popular perception that the corporation "bought" the candidate.

But Justice Kennedy resolves this issue easily enough: "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." Citizens United, 558 U.S. __(2010)(slip op. at 44).

Of course not, Justice Kennedy. How could I lose faith in our democracy when major corporations outspend their ideological opponents by millions to get pro-business Senators, Representatives and Presidents elected? How could I lose faith in our democracy when major corporations buy up all the airtime to get their guys in office? After all, I have to respect corporations' First Amendment rights, too, don't I?

According to Justice Kennedy, indeed I do--even if respecting a corporation's First Amendment rights makes it almost impossible to effectively exercise my own.

At this point, we begin to see the real problem with the conservatives' philosophy about corporate free speech rights. After all, when a powerful person--or a powerful group--exercises his free speech rights, he makes it more difficult for less powerful individuals to voice theirs. It is elementary that money translates into political influence. People with more money can speak more loudly on issues than those with less. By definition, corporations have far more money than even powerful private individuals.

Under this reasoning, it is easy to see how corporations can drown out debate simply by exercising their First Amendment rights. They can overwhelm private opposition by spending massive sums on ubiquitous advertising. That is the "corrosive and distorting influence" that the Court described in Austin. And corporate power to exert "corrosive and distorting influence" is the reason why Congress imposed limitations on the their ability to exercise their speech rights in the first place. Put simply, when corporations exercise their speech rights, they make it progressively more difficult for individuals to exercise theirs.

That is the real meaning of the conservative "corporate liberty" argument: By freeing corporations to speak, everyone else has to shut up and listen to them. In my view, that is not what the First Amendment is about. The First Amendment is about individual rights, not corporate rights. If corporate free speech rights make it difficult for individual free speech rights to survive, I have little problem regulating corporate free speech rights.

But Justice Kennedy does not acknowledge any of this. He does not see the obvious--and disturbing--practical implications behind his reasoning. Rather, he seems to dwell in some ethereal place in which corporate liberty is the same as individual liberty. As such, he sees the corporation as the victim. He even ascribes wisdom to corporations, as if corporate speech could actually enlighten the population: "Corporations do not have monolithic views. On certain topics, they may possess valuable expertise, leaving them best equipped to point out errors and fallacies in speech of all sorts, including the speech of candidates and elected officials." Citizens United, 558 U.S. __(2010)(slip. op. at 48-49).

Contrary to this rhetoric, corporations do have monolithic views on many issues. When it comes to profitability and shareholder enrichment, all corporations are the same: They want to make as much money as possible. That is a "monolithic view." In that sense, corporations will always say the same thing: Namely, whatever will benefit the corporation in the circumstances. In political speech, that means a corporation will always say things to support candidates who will make them richer. Given that, it is ridiculous to think that corporations will somehow "enlighten the public" with their "diverse viewpoints" on life. Corporate political speech is all the same: It is calculated to get people elected who will make them richer. End of story, Justice Kennedy.

In sum, this case disgusts me. I have other objections about it that I will raise in a later post. But for now, it is enough for me to say that the conservatives' view about "corporate liberty" eviscerates the First Amendment's focus on individual expression. Congress understood that corporations had to cede some expressive liberty in order to protect everyone else's relative ability to engage in political speech. Now that the Court has abolished those restrictions, it has opened the door to even greater corporate control over government.

Corporate control over government was already bad before this case. Now it will get even worse. As I suggested in a satire a while back, we might as well just rename the country the "United States of America, Inc." because that's exactly where we're headed. Or maybe we're already there.

DOMINIC CARTER, CRIME AND CHANGING PUNISHMENT IN AMERICA

AN ESSAY

A few months ago, I wrote a short article about Dominic Carter, the former New York 1 anchorman who allegedly beat his wife. I used Mr. Carter's story to illustrate how difficult it is to "prove" things in our empirically-based evidence system. Now, a State court in New York has sentenced Mr. Carter to an unusual punishment for attempted assault. This presents compelling new issues.

Just as Mr. Carter's case provided an excellent vehicle to discuss evidence law, his sentence now provides an excellent vehicle to discuss criminal penalties in modern America. Put simply, criminal penalties are changing in America. And they are drifting far from their traditional purposes. In my view, this is not a good thing.

According to the New York Post, Mr. Carter was convicted of attempted assault for pervasively abusing his wife since 1997. See N.Y. Post, Crying shame of jailed NY1 journo, Jan. 15, 2010 at 5. Although his wife denied that Mr. Carter beat her, the trial judge--Arnold Etelson--referenced police reports detailing marital strife in the Carter home for over a decade. Id. He sentenced Mr. Carter to 30 days' imprisonment. Id. He also ordered Mr. Carter to "stay away" from his wife for two years unless "he is prescribed medication by a psychiatrist able to assure the judge that [he] is well enough to see her." Id. Additionally, the judge gave Mr. Carter an article from New York Magazine detailing Matt Damon's views about "honesty and humility." Id. During sentencing, he told Mr. Carter: "Try some humility and honesty--it goes a long way." Id. Finally, the judge gave Mr. Carter's wife a sticker with the words "Attitude Makes the Difference. " Id. He instructed her to affix the sticker to her bathroom mirror so that Mr. Carter can see it when he visits. Id.

This is highly irregular judicial work. As a general rule, the criminal law forbids specifically defined conduct. The criminal justice system decides whether the defendant engaged in that conduct, then neutrally decrees the legal consequences. While morality animates all criminal codes, it is not for judges in the criminal justice system to pontificate about it, let alone publicly scold criminals for sport. This New York judge transformed his courtroom into an entertainment circus. And the spotlight was not on Mr. Carter--it was on the judge.

To start, it is strange that Judge Etelson characterized these facts as "attempted" assault. At common law--and under New York State law--an assault means an intentionally harmful or offensive touching. See, e.g. NYPL § 120.00, et seq. Any intentional crime can be "attempted" if the defendant intends to achieve the bad result envisioned in the criminal code, then takes some action corroborating that intent. But it is no longer "attempt" when the defendant achieves exactly what the law forbids. Here, the judge relied on police reports that detailed Mr. Carter's abuse. They all but verified that he had routinely hit his wife since 1997. If the judge believed those reports, then he should have convicted Mr. Carter of assault, not attempted assault. If Mr. Carter succeeded in harmfully or offensively touching his wife, it was no longer attempted assault. It was just plain old assault--and it's a worse crime than attempted assault.

But Judge Etelson's legal errors pale in comparison with his bizarre approach to criminal penalties. Traditionally, criminal penalties in America--as in all Western countries--target the body and property. The law assumes that people do not want to suffer bodily pain or lose their property, so penalties targeting those things ostensibly dissuade potential criminals from making "bad choices." The death penalty, imprisonment, fines and corporal punishment encompass everything a State can realistically do to penalize crime.

In modern America, imprisonment is the preferred penalty. Fines follow in second place. Most consider corporal punishment an archaic penalty; it really never happens anymore. The death penalty is more common. Still, State-ordered death is quite a rare punishment, too.

Judge Etelson did not give Mr. Carter a traditional punishment. Rather, he theatrically used Mr. Carter as an instrument. The only traditional part about Mr. Carter's sentence was his imprisonment. To some, thirty days in prison for attempted assault might appear harsh. But no one would call it bizarre. People expect either fines or imprisonment for crimes in America. The criminal justice system works in part because the public knows what to expect for certain transgressions. They trust judges to declare penalties that everyone expects. At the same time, they understand that even a convicted criminal is entitled to some dignity before the law. He need not be publicly humiliated, ridiculed or belittled in the courtroom. His prison term and social ostracism accomplish that on their own. It is not the judge's role to morally grandstand or scold. He simply must pronounce sentence. Legislators moralize when they write the laws. Judges should not.

What does a New York Magazine article or a sticker have to do with the law? When did Matt Damon become a legal authority? True, "honesty, humility and a good attitude" are virtues. But it is not the law's role to chastise people for failing to be virtuous. The law's only role is to decree whether a person acted in a defined way. It does not matter whether he was virtuous or not when he did. A defendant suffers enough when a judge declares the penalty for violating the law; he does not need to "rub it in" by acting the moralist. In fact, I argue that judges overstep their bounds when they do.

I understand that people like to see criminals squirm. But their convictions should make them squirm, not a judge's moralizing antics. If every judge took it upon himself to act like Judge Etelson, our criminal justice system would look more like a Catholic school than a neutral forum for just laws. In a word, it is not a judge's job to castigate a convict's moral failings. Moral failings are irrelevant to the law. And the law is the only thing that judges are constitutionally empowered to decide. Anything else they say is unauthorized fluff.

Judge Etelson-style grandstanding is not the only abomination that occurs in our criminal justice system. Now, criminal penalties also increasingly intertwine with psychiatry. Mr. Carter's case is no exception. In his sentence, Judge Etelson conditioned Mr. Carter's future with his wife on his agreement to take psychiatric medications. He also retained discretion whether to permit Mr. Carter to see her, depending on whether a psychiatrist could assure him that he was "well enough."

Are these judicial inquiries? If they are, do they not negate the State's moral outrage against Mr. Carter? After all, if the court believes that Mr. Carter needs psychiatric medication, that means he is mentally ill. If he was mentally ill at the time he struck his wife, that makes him far less morally blameworthy. After all, the criminal law depends upon free, rational choice for its moral strength. It is easy to condemn someone who knowingly makes a bad choice. But it is not easy to condemn someone who lacked the mental composure to make choices, let alone recognize they were wrong.

In this case, Judge Etelson tried to wear too many hats. He wanted to punish Mr. Carter for doing something that violated the law. But then he stepped back and ordered Mr. Carter to take psychiatric medications for his "mental problems." Put simply, judges are not psychiatrists. They are not social workers. It is not their job to monitor people's behavior once they serve their sentences. Nor is it their job to declare whether people are "normal." Rather, they are mere judicial officers, and it's not a complicated job. It is not about management; it is about judgment: Did the defendant do this or not? If he did, he goes to jail. If he didn't, he goes free.

There is undoubtedly a relationship between law and psychiatry. But a judge's only concern with psychiatry is to determine whether a defendant is mentally well enough to be criminally responsible. If he is, that ends the inquiry. In fact, judges must be extremely wary when dealing with psychiatry in criminal cases. After all, the entire rationale for criminal punishment collapses as soon as psychiatry shows that the defendant cannot make rational choices. In that light, judges should tread lightly when tampering with psychiatric issues. They might just discover that the "evil defendant" is really no ogre at all. He might just be "sick." And it is not proper to morally condemn sick people, let alone jail them for choices they could not make. For better or worse, the law only works on sane people.

I doubt that Judge Etelson understood all these issues when he entertained the news media during Dominic Carter's sentencing last week. From his perspective, he was in the spotlight and he was going to relish the moment. He was not content to play the neutral magistrate who calmly decrees the legal consequences of statutory violations. No, he had to play the scolding father, too, as well as the psychiatrist and the actor.

I do not like this. While it may be impossible to separate law from popular morality, judges should consciously try to do so. True, laws enshrine popular morality. But they are not moral weapons. They are technical guidelines. It does not matter whether a law-abiding citizen is moral; he must merely not violate the technical guidelines. Morality is about character. Law is about conduct. It is much easier to control conduct than character. And a judge simply declares whether the individual in question violated the conduct guideline.

Well, at least that's what a judge is supposed to do. American criminal law is changing for the worse because the distinction between morality and law is eroding every day. Just look at the Carter case. It's all right there to see.

ARE LAWYERS ALLOWED TO CARE ABOUT FAIRNESS?

AN ESSAY

I like fairness. I always have. Even when I was a kid, I couldn't stand it when people got preferential treatment when it appeared to me they didn't deserve it. I didn't like it when other kids cheated at games, or when I saw that some kids' parents had more money than mine. "That's not fair," I complained. When I was young, I earnestly believed that everyone should have an equal chance to succeed at things. And I believed that success had something to do with merit. For me, fairness expressed whether a situation was fundamentally right or wrong. It was intuitive. I even thought that our government cared about fairness.

My understanding about fairness changed over time. I learned that fairness had two dimensions, one substantive, the other procedural. "Substantive" fairness referred to the intuitive judgment whether a situation was right or wrong. "Procedural" fairness referred to the technical circumstances that either gave or withheld an equal chance to achieve a particular result. For example, racial realities in America reflect "substantive unfairness" for black people because their economic social situation is largely worse than that for comparable white Americans. On the other hand, court rules and contract terms might reflect "procedural unfairness" because they tilt technical rules to favor one party over another in a dispute. Substantive fairness is basically a "justice" inquiry. Procedural fairness is more technical. But both imply a confrontation between opposing forces with "something at stake."

In law school, I cared about both substantive and procedural fairness. I used to complain about results in particular cases because they were "unfair" to one side or the other. This amused my professors. Slowly, I learned that while the law professes to supply "procedural fairness" to both sides in a legal dispute in an effort to assure "substantive fairness" (AKA "justice"), the reality is that fairness does not really matter. Procedure and form are more important than substance in the law. The side with greater resources and greater procedural tact will win. One motion beats another motion. A dismissal beats a complaint. A judgment beats a plea. Papers must be filed properly or they will be rejected, no matter how cogent their arguments. Sometimes these procedural results lead to "substantive fairness." But it is really irrelevant. Judges simply look to see whether the lawyers' behavior matches the rulebook. Legal officiating, then, is really just a technical exercise; it is not necessary that both sides have equal procedural opportunities. And it certainly is not necessary that the ultimate result be "substantively fair."

And how could it be? After all, fairness only enters the analysis when two sides confront one another. Fairness comes into play not just in the law, but also in fistfights, football games and poker tournaments. When two sides compete for a result under common rules, fairness rears its head. When something is at stake, fairness matters. Children scream "No fair" only after investing themselves in a game that offers some reward; without confrontation, fairness does not really matter. People want fairness when they strive to obtain a result that will favor them and disfavor someone else. They want to know that they had every opportunity to vindicate their desire to win. In legal terms, litigants want to know that they had every chance to advance their interests, or to protect them if they are threatened.

This creates a dilemma. After all, lawyers in our legal system--like rabid children vying for victory in a game--badly want particular results. They are not neutral guardians committed to abstract principles like "procedural fairness." Rather, they are biased advocates determined to win. In fact, they take an oath to "zealously" represent their clients' legal interests, and that means pulling out all the stops to prevail. This is problematic because fairness and bias do not go hand in hand. If fairness means giving the other side exactly the same opportunity to win as you, then fairness reduces your chances to win. As a biased advocate, you must increase your chances to win, not reduce them. In that sense, lawyering and fairness appear antithetical to one another.

Still, lawyers inevitably say that they just want "fairness" for their clients. But here they confuse their terms. Yes, they certainly want "substantive fairness," namely, a biased result that intuitively pleases the client. But they do not want "procedural fairness," namely, giving the other guy an equal chance to win. Additionally, lawyers misuse the word "fairness" all the time. They say they care about fairness, but they really mean "favorable results for me." If they win, they say the process has been "fair." If they lose, though, they say they were treated "unfairly." This has nothing to do with abstract fairness. This is mere bias and disappointment.

We should not be surprised that lawsuits are brutally acrimonious affairs because we follow the adversarial system in the United States. That means we basically allow two diametrically opposed, biased parties to battle it out to determine various property and liberty rights. One side gains; the other loses. It is always a zero-sum game. As such, advocacy is essential. The lawyers must go for the throat or their clients lose everything. Courts praise the adversarial system because they say it leads to greater "truth." After all, according to the apologists, the "truth" will inevitably come out as two sworn enemies struggle to gain an advantage over each other. And when money is at stake, they will stop at nothing to win. Truth, then, is the "collateral fallout" from biased adversary confrontations.

And here again arises the dilemma. How can fairness matter in bitter confrontations like this? Will either side in a lawsuit value fairness to the other when they are sworn to ruin each other? That is like asking NFL teams to ensure that their opponents get all the favorable flag calls they deserve. In other words, it is sheer fantasy. When two sides confront each other and stand to lose all if they do not win, fairness to the other guy is the last thing on their minds.

I mention all this because our legal system professes respect for fairness. Everyone in court says they are either "aggrieved" or "wrongly accused." They say they just want an opportunity to be heard in a fair forum. Yet during that opportunity to be heard, they want to treat the other side as unfairly as possible in order to win the fight. No one really cares about securing "ultimate fairness." Individual litigants--and their lawyers--just want biased results.

Judges should care about fairness. But as merely technical stewards committed to determining whether lawyers meet the standards set out in motion rulebooks, they have little power to reflect on power disparities between the parties--or unfairness in the rules themselves. Court rules and civil procedure protocols present fairness problems in their own right. Judges do not have the authority or discretion to deeply think about larger fairness issues. Their job is technical, not philosophical or ethical. Behavior either falls within the rule or without. Sometimes the result is fair, sometimes it isn't. Sometimes it's "fair" to bar an injured person from filing a lawsuit because he missed the date by one day. Sometimes it isn't. But from the judge's perspective, rules are rules. And that ends the judge's role.

This is why so many legal cases arouse disgust in neutral onlookers. From a detached perspective, it appears that fairness means nothing in the average lawsuit. Rather, it appears that mere compliance with rules and deadlines takes precedence over the question whether each side has a fair shot at a particular result. And lawyers do their best to belittle, degrade and discount everything their opponents say in court. This gives the impression that they would be just as satisfied if they won unfairly as if they won fairly--just so long as they win. Fairness seems the last thing on their minds. Indeed, they only mention "fairness" if they lose a point, in which case they say the result is "unfair."

In truth, we cannot blame lawyers for acting this way: They are biased advocates in an adversary system. They are trained to exploit rules in order to obtain private results, not to ensure that abstract fairness flows from every confrontation under the law. Lawyers are not philosophers or ethicists; they are employees hired to do a job. And employees are biased toward their employers because they receive pay to act only in their interest.

Bias and fairness are mutually exclusive. That is why I think it is extremely difficult--if not impossible--for our legal system to consistently deliver fair results. That is not to say that biased advocacy does not sometimes lead to abstract fairness. But that is a side effect at best, not an intentional result.

A THERAPEUTIC POST, AND A WORD ABOUT "REASONABLENESS"

A REFLECTION

I'm really in no emotional condition to write. This is not a confession; I just want to say how I feel now so I can remember it later. It helps me when I express what's going on inside my head. During easier times, I can write almost endlessly because I can focus. These days, however, I can barely concentrate. I mentioned last week that I have been going through hard times because my life partner began suffering from a mental illness. It got so bad that he had to go to the hospital to "rest." I have no idea how long he will stay there.

I have never endured a situation like this. We have lived together for nearly ten years; it is jarring to know he is no longer in the house. Worse, I am tormented by the thought that he is not the person I knew. When I speak to him on the phone, it is clear that his illness has overtaken his mind. It breaks my heart and drains my own energy. In addition, I have no idea what the future holds. It is mentally taxing to deal with uncertainty about important things. I am tired all day long. My mind cannot follow anything for more than a few minutes. I am not doing well.

All this trouble started more than two years ago. My partner's mental illness represents the culmination of pressures that began when he suffered a freak burn accident in 2007. I typically do not talk about personal things like this, but now I see no reason to hold back. It helps me sort out my own difficulties when I put them in a chronology. I still cling to logic when it comes to understanding historical events that have an effect on me. I have a good memory and I put it to use.

Let's start with the injury. My partner suffered a devastating burn on his right arm in a health club steam room. No one really knows how it happened; he went into shock almost immediately after it happened. He always tells the same story: He was walking into the steam room when a burst of steam came from his right side, scalding him. He immediately left the steam room, where an employee saw him and remarked: "Oh my God, your arm!" Soon thereafter, he fainted. An ambulance took him to the emergency room. A few hours later, Chicago's best burn trauma unit admitted him for treatment. To make a long story short, he stayed in the hospital for 35 days, endured several skin graft surgeries, suffered two heart attacks and an induced coma.

Upon his release, he was essentially a broken man. His right arm was permanently disfigured. He could still use it for most things, but he did not dare show it in public. To save his arm, doctors had to shear skin off his legs to patch onto the wound. He bears those scars, too. Within a few months, he began slipping into deep depression. He did not get out of bed all day. And he continued to suffer pain in his arm. He took addictive opiate pain-killers to manage it.

All the while, I cared for him. I did the shopping. I did the errands. I took him to appointments and made phone calls. I managed the medications and dealt with the doctors. I provided comfort and sat by the bed when I had to. I tried to work for the first few months after he left the hospital. But he got so lonely and depressed while I was away that I genuinely feared for his life. So I decided to suspend my career to care for him. During that I time, I started writing this blog. Yet during the same time, I have had the much greater responsibility to care for him. In consequence, I, too, have scarcely known rest since 2007.

We tried to sue the health club that caused the injury. But whenever my partner talked about what happened, he fell deeper into depression. Lawyers think it's easy for injured people to relive the worst day in their lives over and over again; it isn't. Worse, we discovered that the health club did not maintain liability insurance on its land, so it would be extremely difficult to recover any money on his behalf without a knock-down, drag-out fight that likely would have driven him over the emotional edge. Our lawyers refused to continue representing us when they found the club had no insurance. Legally and morally, our lawyers held the high ground: No one deserves to enter a business establishment and walk out with a life-threatening burn injury. Numerous legal theories supported our position, from negligence to strict products liability. From a theoretical perspective, we should have won some compensation for him.

But we didn't. No matter how many legal advantages we had, the lawyers got cold feet as soon as they learned there was no insurance involved. Five other lawyers had the same reaction: "Oooh, no insurance! Sorry, I can't help you."

In personal injury cases, liability insurance companies ensure that defendants do not go bankrupt when accidents happen on their land. The insurance company pays for the defense and pays any judgments against the defendants. This protects the defendants' own assets from seizure. Insurance companies also speed things along relatively fast; and that makes everyone happy, including the injured person's lawyers. An insurance company will settle a case against its client quite readily if there are strong facts from which to imply negligence. The defendant just goes along with the program: After all, it is not his money at stake. By contrast, when a defendant does not have insurance, he will fight to the end because it is his money.

That was the situation we faced. And our lawyers bailed out the moment they discovered that they would have to fight for years for potentially no reward. Neither justice nor legal principle spurred them to action. Unless a case could quickly pay out, it was not worth taking. For these lawyers, cases were little more than investments. It did not matter that my partner suffered outrageous injustice due to the health club's negligence: There was not a quick, ready profit to be made on his case, so no lawyer pursued it. Ironically, the health club saved itself by acting irresponsibly: It did not have liability insurance.

Naturally, this result only deepened my resentment toward lawyers and their profession. It reaffirmed that justice does not motivate lawyers. Only potential profits interest them. If a case involves justice and profits, that will get them off their seats. But if it involves justice and no profit, forget it.

But I wonder what would have happened even if the case went forward. How could anyone put a dollar value on my partner's injury? How could money compensate him for the agony he suffered? How could any check restore his scorched arm, or make him whole from the misery and pain he endured in the hospital? I saw his pain up close and personal. I saw him scream at night. I saw him unconscious and hooked up to a ventilator. I saw him cry out in fear as they wheeled him off for yet another surgery. I saw him with a trach tube down his throat and unable to speak. I saw him sweat through his clothes and lie helpless in the bed with his bloody arm in a splint. I had to cut off his shirts with a knife and sponge him dry. I saw him fall into depression and now into mania. What money could make all this "disappear?" What does money have to do with all this?

All these experiences made me question the law. From the law's perspective, money "recompenses" negligently-caused injury. Yet I know from experience that money would have done nothing to recompense my partner's plight, nor would have made his life "all better." Worse, I saw that the law condescends when it comes to monetary awards for injury. Suppose, for instance, that a jury evaluated my partner's pain, suffering and emotional turmoil and concluded that the health club's negligence caused it. Let's say it awarded him $5,000,000. That's all well and good. But under a doctrine called "remittitur," the judge could say: "That's unreasonable. He's only getting $500,000."

Think about how insulting that is. It's one thing to put a dollar amount on physical suffering, disfigurement, permanent injury and even death. It's quite another to claim that one amount is "reasonable" over another. My experience with life-altering injuries convinced me that the law is stupid. After all, what does a judge know about what injured people really suffer? And how can he say with any authority what someone's pain is "worth," let alone whether the amount is "reasonable?"

This example illustrates my deep resentment toward all "objective standards" in the law. Judges always speak in "reasonable" terms: "Reasonable time," "reasonable care," "reasonable regard," "reasonable amount," "reasonable certainty." They think they refer to some magical standard when they use the word "reasonable." In fact, they refer only to their own, value-laden judgments concerning particular conduct in particular circumstances. Judges, after all, come from a distinct social class with distinct ideas about money, punctuality, relationships and "responsibility." They probably never suffered life-altering injuries. If they object to a monetary amount as "excessive" from their perspective, they call it "unreasonable." Yet who are they to quantify another human being's suffering?

Let a judge's wife suffer the same agony that my partner suffered. Then he can tell me what amount would "reasonably" compensate her for it.

BEYOND A REASONABLE DOUBT : WHY IS IT SO HARD TO GRASP?

AN ESSAY

Legal doctrine abounds with verbal formulae. In law school, students memorize these shibboleths. They are the “magic spells” that allow them to “correctly” analyze any fact pattern. They rarely get a chance to reflect on what these “spells” mean from a grammatical perspective, or even whether they are prudent. Rather, law school students act under immense time pressure; they can do little but learn the formula and move on the next one. I doubt that many lawyers ever really ponder famous “legal formulae,” either. But since leaving the profession, I think about them all the time. And I see that there is nothing intrinsically prudent or sacred about them. They are merely administrative tools intended to bring illusory order to the nebulous disorder of human experience.

Everyone knows the phrase “beyond a reasonable doubt.” It appears all the time in movies, plays and even rap songs. Jay-Z named his debut album Reasonable Doubt. It has a mythical ring to it; it sounds appealing, even majestic. But does anyone really understand it? What is it? People assume that lawyers and judges understand it. They even think that it leads to the truth. Yet this is error. “Beyond a reasonable doubt” is an invention. It is a good invention because it seeks to protect individual liberty from wrongful criminal conviction. But it remains invention. It does not magically entitle judges and lawyers to find the truth.

“Beyond a reasonable doubt” is a “standard of proof” that governs criminal trials in the United States. In 1970, the Supreme Court famously held that the Constitution’s Due Process Clause requires every State government to apply the standard in every criminal trial. In re Winship, 397 U.S. 358 (1970). Unless the State proves “every fact necessary to constitute the crime charged beyond a reasonable doubt,” said the Court, it denies the defendant Due Process. Id. at 364 (emphasis added). This is hopeful language. After all, “beyond a reasonable doubt” means that a jury must indulge virtually every inconsistency in the evidence in the defendant’s favor. If there is a “tie,” it goes to the defendant—and individual liberty. It forces the government to put all “reasonable doubt” to rest about the defendant’s guilt before it can take away his liberty—or life.

But today I am not writing about constitutional law. I wrote about the law on this subject as a law student. “Beyond a reasonable doubt” interests me now because it impinges upon much larger concerns, like reason, truth, evidence and belief. Unlike many other legal doctrines, this one deals with facts: What do we believe about someone? What “actually happened?” More importantly, how “certain” must we be before we condemn someone to prison or death? And because “beyond a reasonable doubt” is a “verbal formula,” it has grammatical weaknesses. Lawyers do not think about these things. They just look to see what courts said about past cases.

What is the real issue, then? The real issue is evidence at trial. The State seeks either to imprison someone or execute him. It charges him with a crime, a written definition encompassing certain “bad behavior.” To convict him, it must put forward evidence proving that his conduct falls within the written definition. The prosecutor, jury and judge were not there to see this alleged “bad behavior.” There might be rumors about it. Perhaps there are witnesses; perhaps not. For better or worse, those called upon to decide a defendant’s fate must evaluate evidence to formulate the “truth” about “what actually happened.” No juror actually sensed or perceived the alleged event. They must engage in second-hand observation and decide whether something happened. Evidence gives them sensory fodder with which to judge “the truth.” They might hear a witness’ account or see a video recording. They might hear about footprints, or bloody gloves or even confessions. Yet they might also hear that witnesses have an interest in condemning the defendant, or that they have poor eyesight, or that they were distracted, or that the police coerced a confession. All these things constrain their Herculean task: To decide “the truth,” even if they were not there to perceive it.

Yet juries cannot simply speculate on the evidence. “Beyond a reasonable doubt” is an attempt to prevent juries from simply “imagining” things about the defendant. Rather, it forces them to look solely at the evidence. Remarkably, many courts over the centuries have not understood this, let alone the “everyday folk” who comprise juries. As recently as 1994, the Supreme Court dedicated an entire opinion struggling to explain what “reasonable doubt” actually means. Victor v. Nebraska; Sandoval v. California, 511 U.S. 1 (1994). There, the Court said that “reasonable doubt” does not mean “merely possible doubt,” but rather doubt that, “after consideration of all the evidence, leaves the jury with an abiding conviction, to a moral certainty, that the charge against the defendant is not true.” Id. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). It also said that “reasonable doubt:” “[W]ould cause a reasonable person, in one of the graver and more important transactions in life, to hesitate before accepting certain facts as true…it is doubt that, after full and fair consideration of the evidence, leaves you with and abiding conviction, to a moral certainty, that the accused committed the crime charged…you may be convinced beyond a reasonable doubt yet be fully aware that possibly you may be mistaken…you may find a defendant guilty upon the strong probabilities of the case, provided they are strong enough to exclude any doubt of his guilt that is reasonable…it is an actual and substantial doubt.” Victor v. Nebraska, 511 U.S. at 18.

Did the Court really need to spend so much time on the question? After all, it would have been easier to simply look at the phrase from a grammatical perspective. “Beyond” is a preposition that implies “movement past” a particular point. It implies linear motion: One moves along a path; one reaches a point on the path; one moves beyond the point. Anything before that point is not “beyond” the point. A jury can only convict a defendant if it decides that the evidence moves beyond “reasonable doubt” about his guilt. That is the magical point on the path. The evidence must move “past reasonable doubt” in order for the State to condemn the accused.

This is the point at which the Supreme Court should have considered “reasonable doubt.” The word “reasonable” appears everywhere in the law. Unfortunately, very few courts apply a consistent definition. In many cases, judges simply use the word to impose their own standards on certain behavior, namely, standards demanding steady living, hard work and “contribution to society with regard to the property rights of others.” Yet this “normalizing” definition really misses the point. After all, “reasonable” derives from “reason,” specifically, the human capacity to find truth through the senses. A person is “reasonable” if he believes only what his eyes, ears, nose and skin nerves tell him. It is “reasonable” to believe that snow fell last night if one awakes to see the ground covered in snow. It is verifiable. It is possible to infer the fact that snow fell while you slept from the fact that you see snow on the ground now. It is based on perceptible evidence. But it is not “reasonable” to believe that God exists, because no one sees God. Well, some people say they do, but do “reasonable people” believe them? No, they don’t. “Reasonable people” believe in their senses. They are empirical. They doubt anything that their senses do not perceive. For a person who trusts reason, “truth” is a matter of perception. If the person is not there to perceive an event, he listens to what others say about it, looks at physical residue concerning the event, then decides what “reasonably happened” based on things that can be perceived. This is “reasonable thinking.”

Reasonable doubt, then, is any doubt warranted by perceptible evidence. It rules out all speculation. It is purely evidence-based. The Supreme Court did not need to introduce extraneous concepts like “hesitancy” and “important life decisions” in order to explain “reasonable doubt.” It should merely have said that “reasonable doubt” refers solely to sensory evidence. It is doubt that arises from things we perceive. As long as the evidence permits us to doubt something, we have “reasonable doubt.” Doubt is not “reasonable” if we simply “imagine” it. And if we have “reasonable doubt” in any way, we have not moved “past” or “beyond” reasonable doubt. This is the grammatical way to understand the formula “beyond a reasonable doubt:” If we have it, we are not beyond it. We must acquit the defendant. But if we don’t have it and merely imagine it, we are beyond it. That means we must convict him.

I write all this because I think many lawyers and judges merely learn verbal formulae without seriously considering what the words mean. It is one thing to mouth phrases in order to score points on a test. It is quite another to genuinely ponder what those phrases mean in both grammatical and philosophical terms.

“Beyond a reasonable doubt” is a compelling phrase for several reasons. For one, it reinforces the law’s commitment to “reason” above all else. There is no faith in the law. Spirit is irrelevant. There is only body, property, the senses and “tangible things.” Reason can govern these things; yet it is banal. After all, there is nothing remarkable or spiritually uplifting about arguing over who saw what and who owes whom what dollar amount. These are the concerns of both reason and the law.

Second, “beyond a reasonable doubt” represents the law’s attempt to sort out facts. Courts have an immensely hard time doing this because facts are elusive. No matter what courts say, facts are never determinate. Facts merely represent belief based on second-hand evidence. When courts compose long “fact sections” in their opinions, they do not recount “exactly what happened.” They are merely reciting what the court below them “believed” after applying an arbitrary standard. Put simply, courts do not like talking about facts. Facts are messy. And in the end, they are arbitrary. Once one court believes a fact, it is almost impossible to alter that fact on appeal. This has nothing to do with “truth.” It has everything to do with “administrative convenience” and “interpretation.” Judges don’t reopen factual disputes because they inevitably degenerate into “he said she said” wars long after the event. Judges get to say: “OK, this is what happened,” even if their version is not really true. Interpretation is power: The power to announce the truth, even if untrue.

Reason can help us answer many questions about our existence. I trust it in all situations in which it is valid. I think it is valid in criminal law, because criminal law addresses matters to which reason applies: External behavior that can be “directly perceived” or “inferred.” It does not involve faith or belief; at least, in should not. “Beyond a reasonable doubt” is a good standard in criminal trials because it forces juries to apply only their reason, not their passions or their prejudices. Sensory evidence produces belief or doubt in the mind. When it produces doubt in a criminal case, the defendant must go free. In this sense, the standard favors liberty. As long as jurors understand what the words “reason” and “beyond” mean, they should never have a problem understanding the “beyond a reasonable doubt” standard.

But perhaps this is exactly the problem. After all, jurors—like all human beings—do not always use their reason at times when they should. Perhaps it is too much to expect that people will always be reasonable.

STOP SOTOMAYOR : SHE DOES THINGS THAT YOU CAN SCARCELY IMAGINE

A MESSAGE FROM THE SENATE

By : Mr. John Cornyn III (R-TX), United States Senator; Member, Judiciary Committee; Former Chief Justice, Texas Supreme Court; Member, Texans’ Alliance for Strong Borders and Marksmanship; Chairman, Lone Star Lethal Injection Fan Club, Dallas-Fort Worth Chapter; 1998 Champion Rifleman, “El Adios” Wetback Target Practice Gun Club; Believer in Christian Forgiveness (with qualifications).

Under our Constitution, the United States Senate has the power to confirm “Judges of the supreme court” following our “advice and consent.” See. U.S. Const. Art II, § 2, cl. 2. That means we have the power to interview the President’s nominees to the Supreme Court in order to determine whether they will protect our Constitution and the American people. Today, the United States Senate must decide whether Sonia Sotomayor has the requisite character and intellect to serve on the world’s most influential court. We must provide “advice and consent.” We face a serious task.

For two days now, Judge Sotomayor has given testimony concerning her abilities as a jurist. So far, she has entertained friendly questions from Democratic senators on the Judiciary Committee. She has carefully refused to answer questions concerning her personal views about the Constitution, liberty, freedom and justice in America. She says she “respects the rule of law” and does not allow her “personal feelings” to interfere with her “legal judgment.” On the record, she puts on a good show. From her public testimony, it appears that she is thoughtful, circumspect, judicious and calm. If we had only her public testimony to evaluate, there would be no reason to say that she is not qualified to be a Supreme Court justice.

But this “performance” is sheer theater. Judge Sotomayor is no detached legal technician like Chief Justice Roberts or Justice Thomas. She is a maniacal lesbian Puerto Rican communist determined to sabotage the United States with Latin perversion. Although several of my Republican colleagues on the Judiciary Committee have reminded the world that Judge Sotomayor belonged to the “Puerto Rican Legal Defense Fund,” no one really seems to notice how dangerous this is. The “Puerto Rican Legal Defense Fund” does not just pay lawyers to argue cases involving Puerto Ricans. It practiced—and continues to practice—voodoo. Its members, including Judge Sotomayor, take part in pagan Caribbean rituals to the grass goddess La Mama del Verde Eternal, during which they burn pungent incense, curse “gringos” and chant prayers to make “Boricuan” the official language of the United States. In short, Judge Sotomayor is deceiving the American people. She is no judge; she is a Puerto Rican radical communist witch doctor with plans to wage war on every white English speaker in America.

I am determined to set the record straight on Judge Sotomayor. I refuse to listen to her song and dance any longer. I know a Puerto Rican woman when I see one, and there is a Puerto Rican woman sitting before me in the halls of the United States Senate, not a federal judge. I am duty-bound to tell the American people that there is much more to Judge Sotomayor than meets the eye. Put simply, she does things that you can scarcely imagine. If I do not tell the world about this Latina viper, she will slither into the Supreme Court to permanently taint our constitutional order. Unless I speak, every American will soon be forced to sing salsa songs and drink mango juice every morning. As an American and a Texan, I refuse to condemn this country to lesbian Puerto Rican terror.

We should have known from the outset that Judge Sotomayor was not what she said she was. Although we could not locate many public statements revealing just how dangerous she could be, we did find a speech in which she called herself a “wise Latina” who could answer some questions better than a comparable “white male.” That should have immediately raised red flags. If George W. Bush were still leading this failing Republic, Judge Sotomayor would have faced impeachment, not elevation to the Supreme Court. But we live in perplexing times. How can we possibly revere a judge who claims that Hispanic women are “wiser” than white men? This is a proposition too outrageous to entertain. To be fair, perhaps Judge Sotomayor meant that “wise Latinas” could be wiser only on certain matters, such as the best place to watch the Puerto Rican Day Parade or how best to translate Spanish phrases, such as: “Ay papi!” After all, there is no way Latinas can be wise when it comes to deciding a securities fraud suit. They don’t even know what a security is. And how can I elevate someone to the Supreme Court if they don’t know that?

But this is not just about legal knowledge. This is about character. I am informed that Judge Sotomayor does unimaginable things. She is not the hard-working, careful jurist she leads us to believe. No, she is a monstrous racist devil-worshipper who dresses as a banana in her private chambers. She castigates white men in Spanish, calling them “pedejos,” “maricons,” “cabezas de vaca,” “coños” or worse. She carries on lesbian affairs with married women in nursing homes. She eats mice, broils frogs and casts Puerto Rican voodoo spells on white litigants before the Second Circuit Court of Appeals. She has lived at over 56 addresses throughout New York City since 2001. She has robbed banks while dressed in a Puerto Rican flag shawl. She drives a small Toyota automobile and blasts obnoxious Caribbean music through an expensive, bass-heavy stereo purchased with money filched from the Federal Judicial Fund. This is not the conduct of a prudent jurist. This is not even the conduct of a “wise Latina.” To the contrary, this is the conduct of a hateful racist criminal communist lesbian gypsy vagabond who is determined to undermine American society as we know it. We must stop her from wiping her culo with the Constitution before it is too late.

Judge Sotomayor’s jurisprudence is just as radical as her lifestyle. Although she would have us believe that she takes an “incremental” approach to deciding cases, I know better. So far in her confirmation hearings, she has refused to disclose her beliefs on abortion, choosing instead to say that Roe v. Wade is “settled law” before praising the importance of stare decisis to “careful judging.” But I know the truth. I know that Sotomayor hates children and belongs to the International Latin Fetal Roasting Society (ILFRS). That organization promotes the public disembowelment of pregnant white women, then the ritual boiling of unborn children in a skull-shaped cauldron—all conducted in the Spanish language. She not only supports abortion, but she verifiably boils children—then eats them. How can we defend children in America with an avowed child-eater on the Supreme Court? If we confirm Sonia Sotomayor, we risk enshrining child-eating as a constitutionally-protected right. Put simply, Judge Sotomayor doesn’t fool me when she says she will “carefully consider” abortion regulations. I know she secretly yearns to throw screaming white children into a boiling cauldron, then greedily devour them like scalloped potatoes. This should give us all pause before confirming her as our next Supreme Court justice. Liberal constitutional interpretation is one thing. Eating children is quite another.

But all these personal and intellectual flaws pale in comparison to Judge Sotomayor’s intention to interpret the Constitution in a “ compassionate, humanitarian manner.” In speech after speech and opinion after opinion, she has said that the Constitution should protect the weak and powerless. She has issued opinions granting asylum to Africans and faulting city governments for “not hiring more minorities.” She has freed criminals because the police searched them without warrants and she has said that public school students have a “free speech right” to mock their principals. She is prepared to open our borders to every foreign ruffian who shows up for welfare benefits, and she believes that major corporations should be subject to strict governmental review. In a word, these are dangerous sentiments. If we confirm Judge Sotomayor to the Supreme Court, she will rule for freedom, not precedent. She will rule for justice, not procedure. She will rule for the individual, not the bank. And she will rule for compassion, not commerce.

This is simply unacceptable. Our Constitution does not stand for justice, compassion, freedom or sympathy. Rather, it stands for commerce, procedure, private property and banks. There are ways to interpret the Bill of Rights to protect commerce and banks; Chief Justice Roberts has already shown a marvelous ability to reconcile individual rights with the rights of banks and police investigators. In fact, in my view, a Supreme Court justice proves his worth by skillfully deconstructing dangerous individual rights in order to protect banks and police forces in America. If we protected individual rights too zealously, both government and industry would grind to a halt; every black fellow on the street could bring the police force to its knees simply by saying: “That cop beat me.”

This will not do. Our Constitution is not about sympathy, compassion, humanitarianism or justice. Rather, it is about order, procedure and commerce. Yet Judge Sotomayor threatens to bring sympathy, compassion and justice to the Supreme Court. That would betray the very ideals for which America stands. We must stop this revolutionary lesbian from destroying our country.

We still have time to stop this madness. If America knows the truth about Sonia Sotomayor, they will urge their Senators to vote “no” on her confirmation. At the moment, she is dangerously close to success. Unless we act now, we will promote an inveterate Puerto Rican child-eating communist to our high court. Unless we act now, the police will no longer be able to search people without warrants. Unless we act now, we will be forced to hold dinner parties at state expense for convicted Muslim terrorists. These are Sotomayor’s plans. We cannot allow her to bring her witchcraft to the heart of American government. We cannot allow her to hoodwink us with her calm, collected public demeanor. This is no detached jurist. This is an activist Puerto Rican voodoo dyke from hell who would rather castrate a white male this afternoon than have lunch with her immigrant mother.

For the sake of our Republic and our Constitution, we cannot allow Sonia Sotomayor to bring justice, fairness or “humanity” to the Supreme Court.

THE SOTOMAYOR CONFIRMATION : SHOULD WE EXPECT OUR JUDGES TO BE COWARDS?

AN ESSAY

I have little doubt that the Senate will confirm Judge Sonia Sotomayor as our next Supreme Court justice. I make this judgment on purely political grounds. After all, the power to confirm “Judges of the supreme court” lies with the Senate (see U.S. Const., Art. II § 2, cl. 2). And if history is any guide, it shows that the Senate party in power wins the confirmation fights. When the Republicans controlled the Senate, they easily overcame Democratic resistance to appoint fellow Republicans Chief Justice John G. Roberts (78-22) and Justice Samuel A. Alito (58-42). Now, the Democrats control the Senate by a healthy majority. They will similarly endorse their fellow Democrat, Judge Sotomayor. This has little to do with legal ability, conscience, honor or principle. It is all about politics. If you have more votes than the opposition, you win. If you don’t, you lose. If Plato were nominated to the Supreme Court by a Democratic President and the Republicans controlled the Senate, he would not be confirmed.

But of course the Republican minority will carp in this case, just as the Democrats carped when the Republicans controlled the Senate. It will not affect anything. It will just fill the air with bitterness and resentment; this is Washington and we should expect nothing less. Still, I always find it interesting when politicians bluster in vain because it gives me an insight into their values. Despite Judge Sotomayor’s obvious “Supreme Court pedigree” (i.e., she went to a top-tier law school; she got good grades; she clerked for the right federal judge; she served as a lower court judge; she curried enough political favor; she never went to prison or owed excessive debt), Republicans nonetheless will find issues to whine about. It is as predictable as the rain.

In a New York Times article today (Sotomayor’s Sharp Tongue Raises Issues of Temperament, May 29, 2009), I read that the Republicans find fault with Judge Sotomayor’s “sharp tongue.” According to several lawyers who practice before her on the Second Circuit Court of Appeals in New York, Judge Sotomayor is “occasionally combative,” “difficult” and “nasty” when she hears an argument she does not like. Some even said she is a “terror on the bench” who “behaves in an out-of-control manner.” This, in sum, has led Republican critics to oppose her “judicial temperament” rather than her intellectual qualifications. In other words, she may be smart, but she is not sufficiently polite to be a Supreme Court justice.

I actually like the fact that Judge Sotomayor volunteers her own opinions from the bench, especially when she criticizes a preposterous argument. I turned my back on the law because it is too technical. I reject its formalism, its inequalities and its vapid, hypocritical rhetoric. I reject it because it grandly claims to serve justice, when it generally only serves power. I reject it because it espouses principle, yet denies it to anyone who does not worship “procedure.” I reject it because it advances order over right, even when right is apparent. I generally despise judges because they buy fully into these hypocrisies to support a fundamentally unfair system. But sometimes judges surprise me. When they actually voice respect for justice and right, they redeem themselves. I even appreciate them when they dare to speak their minds about legal issues rather than merely reference arcane procedural rules to avoid the obvious, burning question. See, e.g., F.C.C. v. Fox Television Stations, Inc., Supreme Court Docket No. 07-582 (decided April 28, 2009). Judge Sotomayor does this more often than the Republicans like. This makes her an “activist” and “out of control.” As soon as a judge starts talking about justice, in other words, she has a “problem with temperament.”

What caused the Republicans to question Judge Sotomayor’s “manner on the bench?” They point particularly to her conduct in a recent appellate court oral argument in a case called Arar v. Ashcroft (see video at http://video.google.com/videoplay?docid=1706247655617377220). This is a high-profile case about the Executive’s alleged power to “render” foreign citizens to third-party countries to be tortured for “counterterrorism information.” Mr. Arar is a Canadian citizen who claims he was seized in the United States when transferring to a flight to Canada at an American airport. Arar said there had been a terrible mistake. The agents saw things differently. After a short detention, American agents allegedly sent him to Syria in order to circumvent America’s ban on torture. There, Syrian agents imprisoned him for almost a year and subjected him to various bodily indignities. Finally, they determined he was not a terrorist and sent him back to Canada. Now he sues the American agents who handed him over to Syria, claiming they knew full well he would be tortured there. In response, the United States government denied responsibility and asserted that American courts had no jurisdiction to hear the case because “federal agents” are not liable for “constitutional torts” when “national security and foreign policy” are at issue.

During oral arguments in Arar, Judge Sotomayor questioned the government’s lawyer. She cut him off twice in order to confirm her understanding about the government’s position in the case. She wanted to know whether the United States government truly asserted that American agents face no liability for sending people to be tortured abroad as long as they doctor up some “national security explanation.” This angered Judge Sotomayor for good reason. In essence, the government contended that it was “OK” to render people to countries that allow torture because the Executive has unquestionable “power in foreign relations matters.” Judge Sotomayor did not like that contention. She made her feelings clear that it was an awkward argument to make, especially in a country that professes respect for individual rights and liberties. She did not like the argument that the Executive can “do whatever it wants” simply because it says “national security is at stake.” She thought those sentiments did not sit well with the principles that animate our constitutional system. And because she made her feelings clear, Republicans now call her “sharp-tongued,” “out-of-control” and “nasty.”

Judge Sotomayor won my respect by confronting the government’s lawyer in this case. She was not even disrespectful or “nasty” when making her points. She may have interrupted the lawyer, but she did not insult or humiliate him. That is normal business in American appellate courts. Judges always showcase themselves over the lawyers. The lawyer’s cursory statements simply provide fodder for the judges’ own rhetoric. Judge Sotomayor did the same thing that many Republican judges do every day. But here, she actually took a strong position on an issue that should concern us all: Torture. If a judge does not get passionate about claims that her own government endorses torture, what will spark her interest? Securities fraud? Accounting irregularities? Property disputes? If anything at all arouses a judge’s sense of right and wrong, it should be torture. The United States claims to be a progressive, civilized country that respects rights and laws. Yet torture represents an earlier, not-so-civilized age in which raw, ugly power ruled over principle and reason. America publicly condemns countries that practice torture today. Against this background, if a judge does not fundamentally recoil when confronting allegations that the American government endorses torture, she should be ashamed to call herself a jurist.

This reveals the absurdity in the Republican position. Did they expect Judge Sotomayor to sit inertly by while the government’s attorney tried to justify torture with disingenuous procedural arguments? If they did, what does that say about their values? That torture is “OK” as long as a Republican administration orchestrates it? That “procedure” should win out over “justice?” They would have preferred that Judge Sotomayor said nothing and merely allowed the government’s lawyer to spin his guilty logic. You can even see in the video that the government’s lawyer is uneasy, not just because he is on the hot seat, but because he knows that it is wrong to defend torture. His face contorts. He bites his lip. His eyes dart nervously through the courtroom. When judges confront him about his substantive position, he tiptoes around the real issue and starts talking about procedures and precedents. He cannot bring himself to admit that torture is wrong, yet his demeanor admits it for him. Thus, the contrast between his behavior and his words make him a glaring hypocrite. Only his mechanical legal training prevents him from breaking down altogether. To her credit, Judge Sotomayor showed that she could forgo logic when confronted with fundamental wrong.

She did not sit quietly through this nonsense. No person with a basic sense of justice could have. Yet the Republicans seem to think that speaking out about fundamental injustice makes a judge “out of control.” As soon as a judge departs from vacuous questions about procedure, jurisdiction and statutory authority, she reveals a “poor judicial temperament.” In short, it seems to me that the Republicans want cowardice in a judge. A cowardly judge would allow the Executive to get away with anything. A cowardly judge would resolve a torture case on procedural grounds rather than grapple with fundamental questions of justice. A cowardly judge puts full faith in the “law,” even when the law clearly will not do “right.” A cowardly judge sits by and lets others do the real work later. A daring judge, on the other hand, can at least acknowledge wrong when she sees it and set the country on the right rhetorical path to correct it. I think Judge Sotomayor showed some daring in her exchange with the government’s lawyer in the Arar case.

But in the end, it really comes down to politics. A liberal “daring judge” is a “coward” to conservative eyes, while a conservative “daring judge” is a “coward” to liberal eyes. Here, Judge Sotomayor spoke out about an issue that largely appeals to liberals: The ignominy of torture. Because she spoke out on that issue, liberals label her “daring,” while conservatives call her “out of control.” But if a judge passionately spoke out about an issue dear to conservative hearts, such as “national security,” conservatives would call him “daring,” while liberals would label him “a coward” or “out of control.” Sadly, we see that principle plays nary a role in these judgments. It is simply about who says what, and whether the issue appeals to conservatives or liberals.

Must our judges be cowards? If we adopt conservative rhetoric, judges must be cowards when addressing questions concerning individual rights, dignity and justice. If we adopt liberal rhetoric, judges must be “out-of-control” when addressing questions concerning procedure, unfair power relationships and judicial restraint. If I had to choose, I would prefer a judge to be daring about liberty, dignity, individual rights and justice. Despite all my cynicism and suspicion, I still believe that the Constitution stands for good. I believe that it stands for evolving liberty and gradual improvement in society through advancing principle. I would prefer a judge be passionate about those ideas rather than cowardly and technical. Unfortunately, modern “judicial thought” counsels strongly against “expansive judging” and “unnecessary explications of principle” in court opinions. But why even bother having a Constitution if we do not have daring judges to expand upon the liberties enshrined in it? How do we advance as a society when our own constitutional arbiters take a narrow view on liberty? Should we not expect our jurists to advocate for us, “We the People,” the ones who created the Constitution in the first place? The ones who delegated its authority after the Revolution? If Congress and the President fail us—as I think they did on the torture question in the Bush years—who will speak for us?

I think we should expect our jurists to advocate for us. Judge Sotomayor showed that she at least cares about how our government acts with respect to our rights as citizens in a constitutional system. She recoiled from the suggestion that the Executive can “do whatever it wants” whenever it conjures up a shadowy “national security reason.” In essence, she showed that individuals matter more than the government. That is certainly an advance over Roberts and Alito, who could care less whether government swallows up individuals, or whether innocent people die at the hands of the State. In other words, Judge Sotomayor’s conduct at the Arar argument shows that she cares at least something for justice. In my view, that is an auspicious qualification for serving on the Supreme Court. And among at least four of its current members, it is a qualification sorely lacking.

Having said all this, I am glad I am not a judge. I like thinking for myself, not attempting to shoehorn my beliefs into precedent and prior judgment. Judicial work lends itself to obedience and cowardice far more than it does to daring. After all, judges work with others’ words, not their own. It is hard to be creative when someone else tells you how to paint. I echo Nietzsche on this score. Judicial work is like “dancing in chains.” Menschliches, allzu Menschliches Teil II, Der Wanderer und Sein Schatten Aph. 140 (“For what we call ‘Invention’ [in art] (metric rhyming, for example) is always just another chain that we lay upon ourselves”). Judges constantly imprison themselves in others’ logic and arguments. It is what they do. Yet when some passion escapes the chains, we should embrace it with full hearts.